A comparison with other employees who received different treatment is probably
the most common way federal employees prove their agency’s explanation
for discrimination against them was a pretext. The argument is intuitive,
but proving it under the law is not. Courts are picky about what other
employees they view as a legitimate comparison – “similarly
situated” in legal terms – and it is often necessary for an
attorney to cite previous court decisions to show why a comparison is
legitimate.

In most (but not all) cases, federal employees can only compare their situation
to other employees if the relevant aspects of their work situation are
“identical or nearly identical.” Steven W. Tettleton v. Government
Printing Office, Petition No. 03A00080. To determine that, courts will
look at factors like whether the employees report to the same supervisor,
were subject to the same disciplinary standards, and acted in the same
way as one another without mitigating circumstances.

It’s a tough standard, but there is a lot of room for argument within
it. For example, the EEOC has sometimes agreed that employees are similarly
situated even though they work for a different supervisor if a central
office, rather than the supervisor, is the one really making employment
decisions.

An attorney can help a federal employee make the best case possible by
citing past similar decisions and pointing out exactly why a client’s
comparison is a legally valid one. In some cases, an administrative judge,
the EEOC or MSPB may be convinced to take a looser view of the standards.

For example, in a 1994 Merit Systems Protection Board case, Creer vs. the
U.S. Postal Service, the Postal Service fired a Letter Carrier for failing
to report an “at-fault vehicle accident,” as well as for his
prior disciplinary record. He appealed the decision to the Merit Systems
Protection Board, alleging that the Postal Service had discriminated against
him on the basis of his sex.

The Letter Carrier compared himself to a female employee whose removal
had been proposed for failure to report an accident, going AWOL, and failure
to follow instructions. She also had a significant disciplinary record
including multiple suspensions as well as three vehicle accidents and
an industrial accident.

Both the Letter Carrier and the female employee had the same proposing
and deciding disciplinary officials, their cases were just two years apart,
and, while the MSBP did not explicitly outline her position, both appear
to have had substantially the same duties. While the Letter Carrier was
ultimately fired however, the female employee was allowed to obtain a
position in another post office before her removal.

The MSPB found that the comparison between the two employees was valid,
and sufficient to show sex discrimination against the Letter Carrier.
It reinstated him, and awarded back pay.

There are two main takeaways from this case.

First, both employees were in quite similar situations. They performed
the same tasks and had committed similar infractions within just two years.
If the female employee had been fired for something other than failing
to report an accident, for example, the Letter Carrier may not have been
successful.

Second, the MSPB stretched the requirement for having the same supervisor,
and actually overturned an earlier Administrative Judge’s determination
that the Postal Service’s action against the Letter Carrier did
not amount to discrimination. (Note: the MSPB routinely uses a broader
comparison standard when determining the proper severity of discipline,
but uses the same narrow standard as the EEOC when determining whether
or not discrimination occurred.)

The Postal Service argued that both employees were treated similarly because
the proposing and deciding officers acted the same way in both cases –
they approved the firing of both employees. It was a different official
at a different post office who hired the female employee before her ultimate
termination. Therefore, under the Postal Service’s reasoning, which
the Administrative Judge accepted, the action should not be considered
discrimination because the actual difference in treatment was the result
of the action of an entirely different official with no relationship to
the Letter Carrier.

The MSPB disagreed however, and in doing so, showed a willingness to stretch
the general rule that the two employees being compared had to have been
disciplined by the same supervisor or authority. The MSPB did not explicitly
discuss stretching that standard, but they did so all the same, showing
how important it is to have a good attorney advocating for you in a discrimination case.

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